News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Three new opinions, including an interesting actual-innocence case

The Third Circuit today upheld a federal prisoner’s ability to challenge his conviction under 28 USC 2241 instead of 28 USC 2255, but on the merits held that the prisoner failed to prove his actual innocence, and thus affirmed.

On the 2241 issue, the court noted “an entrenched split among the courts of appeals regarding the extent to which a change in statutory interpretation permits a federal prisoner to resort to § 2241 for an additional round of collateral review.” (Emphasis added). The opinion notes that 10 circuits (including the Third) allow it, while the Tenth and Eleventh don’t. In a parenthetical, the opinion provocatively notes that Judge Gorsuch was the author of the 10th Circuit opinion, and it ends by noting that split causes difficulties that “will remain, at least until Congress or the Supreme Court speaks on the matter.” All that sounds a weensy bit like a nudge to grant certiorari and perhaps reverse the Third Circuit rule, but the opinion goes on to emphatically reaffirm the rightness of the circuit’s approach, and perhaps that tension explains why it took 10 months after oral argument to issue the opinion.

On the actual innocence issue, the court began by noting that this was the first time it had considered the merits of an actual innocence claim under 2241. It left open the question of what standard applies to such claims by rejecting Bruce’s claim under the more lenient standard, the Schlup/House/McQuiggan gateway standard. Applying that standard to the facts, the court rejected Bruce’s claim.

Joining Fisher were Vanaskie and Krause. Arguing counsel were Rajeev Muttreja of Jones Day for Bruce and Kevin Ritz for the government.

This appeal arose from an airport-security-screening dispute. A would-be traveler alleged that a TSA screener violated his First and Fourth Amendment rights by falsely accusing him of making bomb threats after the traveler threatened to file a complaint against the screener. The Third Circuit today held that no Bivens action for First Amendment retaliation exists against airport security screeners who retaliate against travelers for exercising their free-speech rights. As to the Fourth Amendment malicious prosecution claim, the court held that no interlocutory appeal was available because the defendant sought summary judgment on the merits rather than on qualified immunity.

Joining Jordan were Smith and Roth. Arguing counsel were John Connell of Archer for the TSA screener, Thomas Malone of the Malone Firm for the traveler, and Daniel Aguilar for the government as amicus.

Under the Individuals with Disabilities Education Act, a parent of a child with a disability can bring administrative and judicial proceedings to challenge a school district’s alleged violations of the Act, and, if the parent emerges as “a prevailing party,” the parent is then eligible for an award of attorneys’ fees. 20 U.S.C. § 1415(i)(3)(B). This case presents the question whether a fee award is available to parents who, after unsuccessfully challenging a school district’s proposed educational placement for their child, later obtain a court order requiring the school district to reimburse them for the costs of the child’s “stay put” placement—the “then-current educational placement” in which the Act permitted the child to remain while administrative and judicial proceedings were pending. Id. § 1415(j). We answer this question in the affirmative and conclude, consistent with the Act’s text and with the opinions of this Court and the other Courts of Appeals, that a court-ordered award of retrospective and compensatory relief, even if awarded under the Act’s “stay put” provision, 20 U.S.C. § 1415(j), confers “prevailing party” status. We therefore will reverse the District Court’s denial of attorneys’ fees and remand for proceedings consistent with this opinion.

Joining Krause were Vanaskie and Restrepo. Arguing counsel were Alan Yatvin of Popper & Yatvin for the appellants and John Francis Reilly of Media for the district.